Bombay High Court
Shri. Harishchandra Sadanand ... vs The State Of Maharashtra Thru The ... on 27 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:12767 Harishchandra Sadanand Pendurkar & Ors v The
State of Maharashtra & Ors
504-aswp-1835-2019-J.doc
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1835 OF 2019
1. Harishchandra Sadanand
Pendurkar,
Aged Adult, Occ. Service,
2. Vikram Babasaheb Patil,
Aged Adult, Occ. Service,
3. Supriya Gopichand Karekar,
Aged Adult, Occ. Service,
All R/o. Nanar, Tal. Rajapur,
Dist. Ratnagiri ...Petitioners
~ versus ~
1. The State of Maharashtra,
Through the Secretary,
School Education Department,
Mantralaya, Mumbai 400032
2. The Education Officer,
[Secondary], Zilla
Parishad,
Ratnagiri.
3. Nanar Panchkroshi
Shikshan Prasarak Mandal,
Nanar,
Tal. Rajapur, Dist. Ratnagiri
Through its Chairman/Secretary
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Harishchandra Sadanand Pendurkar & Ors v The
State of Maharashtra & Ors
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4. Late SN Desai [Topiwale],
Vidyamandir, Nanar,
Tal. Rajapur, Dist. Ratnagiri,
Through its Head Master ...Respondents
A PPEARANCES
for the petitioners Mr NV Bandiwadekar, Senior
Advocate, with Vinayak
Kumbhar, i/b AN
Bandiwadekar.
for respondents no. Mr Deelip Bankar Patil, Special
1 & 2-State Counsel, with MS Bane, AGP.
for respondents No. Mr Suresh Sabrad.
3&4
CORAM : G.S.Patel &
Neela Gokhale, JJ.
RESERVED ON : 24th April 2023
PRONOUNCED ON : 27th April 2023
ORAL JUDGMENT (Per Neela Gokhale, J):-
1. Rule. The contesting 2nd Respondent has filed Affidavit in
Reply. By consent, Rule made returnable forthwith.
2. The three Petitioners are teachers employed in the 4th
Respondent secondary and fully aided school run by the 3rd
Respondent Educational Institution. The 2nd Respondent is the
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State of Maharashtra & Ors
504-aswp-1835-2019-J.doc
Education Officer (Secondary) of the Zilla Parishad, Ratnagiri and
the 1st Respondent State Education Department.
3. The present proceeding has a chequered litigious history. In a
series of proceedings before this Court, the Respondent Education
Department was directed to send the requisite number of surplus
teachers to the 4th Respondent school by 30th April 2018, failing
which the Management was given liberty to fill in vacant posts of
Shikshan Sevaks and permission of the Education Officer was
specifically directed to be dispensed with. Paragraph 5 (a) and
paragraph 5 (b) of the order dated 10th April 2018 passed by the
Division Bench ( Justice BR Gavai, as he then was and Justice
Bharati H Dangre) reads as thus:
"(a) The respondents are directed to send the requisite
number of surplus teachers to the petitioner's institution
by 30th April 2018. In the event the petitioner does not
receive the names of any surplus teachers on or prior to
30th April 2018, the petitioner would be at liberty to fill in
the vacant posts.
(b) Needless to state that if such posts are required to
be filled, no permission of the Education Officer would be
required inasmuch as the said would be done under the
orders of this Court."
4. Pursuant to the aforesaid order, the 2nd Respondent issued a
letter to the school Management conveying that a surplus teacher
namely one Smt Magdum was available for appointment as
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Assistant Teacher and that she would join to fill the vacancy in the
4th Respondent school. However, since she failed to join for a
considerable time, the school Management proceeded to appoint
the 1st Petitioner as Shikshan Sevak on probation, as per Rules.
Pertinent to note is that the appointment was made after following
the due procedure of issuance of advertisement, followed by
interview, recommendation of Selection Committee etc. Following
the appointment, the school Management sought the approval of
the Education Officer which was refused. The refusal was
challenged by the Management in this Court, in Writ Petition No
8470 of 2018. Noticing the earlier order, the learned Single Judge of
this Court ( Justice Sadhana S Jadhav) by order dated 30th August
2018, reiterated and clarified that the appointment of the Petitioner
No. 1 was deemed to be an appointment under the orders of this
Court dated 10th April 2018.
5. Despite the various orders passed by this Court as mentioned
herein above, the Respondents issued letter dated 3rd December
2018 granting only temporary approval to the appointment of the
three Petitioners till the last date of the academic session or till a
regular teacher was appointed through the Pavitra Portal or a
surplus teacher was made available. It is this letter that has been
challenged in the present Writ Petition.
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6. The facts in the present matter reveal that since 2016-2017
despite vacancies being available of sanctioned post in the school,
the Education Department failed and neglected to make available
any surplus teacher nor did they grant permission to the
Management to fill up the available vacancies. This compelled the
school Management to approach this Court by way of filing Writ
Petition No. 1299 of 2018 seeking direction to the Education
Department to either make available surplus teachers or permit the
school to initiate the appointment process. It was in this Petition
that the order dated 10th April 2018 as mentioned above was passed
followed by order dated 30th August 2018 by this Court
7. As evident from the previous Court orders and despite the
said orders, no surplus teachers were made available to fill up the
vacancies. The school Management thus proceeded to appoint the
three Petitioners on the vacant posts after following the due process
of law. The appointment of the Petitioners has been made in
accordance with the relevant Rules.
8. After the filing of the present Petition on 31st January 2019,
the Education Department by its letter dated 30th April 2019 placed
on record along with the reply Affidavit of the 2nd Respondent
approval of the appointment of the 1st Petitioner. However, the
impugned order of rejection continues in respect of the other two
Petitioners.
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9. Mr Bandiwadekar appearing for the Petitioners points out the
previous orders of this Court and contends that all three Petitioners
possessed prescribed qualifications and were appointed as Shikshan
Sevaks in the 4th Respondent school for the period of three years on
a monthly honorarium. The appointments were made on duly
sanctioned and vacant posts available in the school. He further
submitted that despite representations made by the Management,
the Education Officer failed to grant approval to the said
appointment. He also stated that one surplus teacher Smt Magdum
was seemingly made available for appointment, however, she failed
to turn up to join the post. The Management thus proceeded to
appoint the Petitioners. The Petitioners are working regularly and
diligently and have now even completed the mandatory three year
probation period and are eligible for appointment on a regular pay
scale. He submits that the conditional and temporary approval
granted by the impugned order is illegal and contrary to the previous
orders passed by this Court.
10. Mr Suresh Sabrad appearing for the Respondents No.3 and 4
supported the case of the Petitioners. Per contra, Mr Dilip Bankar
Patil, Special Counsel along with Mrs MS Bane learned AGP for the
State conceded that approval was given to the appointment of the
1st Petitioner in view of order dated 30th August 2018 passed by this
Court directing that the appointment of the 1st Petitioner is deemed
to be an appointment under the orders of the Court. However, he
puts forth a strange defence. He contends that in the absence of any
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such specific order passed by the Court in respect of the Petitioners
No. 2 and 3, their case is distinguishable from the case of the 1st
Petitioner and thus the impugned order continues in respect of the
other two Petitioners. We have referred to this explanation as
'strange' since one would expect the administration to apply the
same principle of law to the case of the other two similarly placed
Petitioners and not compel individual teachers to take a litigation
route to seek similar relief. No other point of distinction has even
been attempted to be canvassed except the order passed by this
Court in relation to the 1st Petitioner and not the others.
11. Considering the facts of the case and in view of the previous
orders of this Court as mentioned above, it is clear that the
appointment of all three Petitioners has been made in pursuance of
orders of this Court. It is an admitted position that all three
Petitioners are qualified for the post and are appointed after
following the due procedure of issuance of advertisement, interview
etc., on regular posts. The case of all three Petitioners is on equal
footing and all three are similarly placed. An attempt is made by the
2nd Respondent to canvas that there is a violation of Rule 9 (2A)
and (2B) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules 1981 ("MEPS Rules") read with
Government Resolution dated 23rd June 2017 and that there was
some discrepancy in the roster whereby two advertisements were
issued, one for filling up the vacancy of OBC category and another
from the SC category. The said submission is recorded only to be
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rejected. In any case, the 3rd Petitioner an OBC candidate was
appointed on an OBC category vacancy and not on SC category
vacancy. Thus no SC category vacancy has been usurped by any of
the Petitioners.
12. It is clear that the Government has extracted work from the
Petitioners for the past five years with a sword of uncertainty and
termination hanging over their heads. It is not in dispute that the
appointments were made after following the due process. The
Management was compelled to initiate the appointment procedure
after waiting for considerable time for the Education Department to
make available surplus teachers. The provision of Section 5 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 mandates the Management to fill up vacant
posts at the earliest. It cannot be said that the Petitioners have got
the employment through a back door entry. Although an attempt
was made to distinguish the case of the 1st Petitioner from the other
Petitioners, the difference seems to be only that the Court in order
dated 30th August 2018 only dealt with the issue pertaining to the
1st Petitioner and not the others. There is no substantive point of
distinction between the Petitioners inter se. We see no reason as to
why the Petitioners, who are otherwise eligible and qualified for the
posts and who are selected by a constituted committee and are
appointed in sanctioned posts by following the due procedure and
further in pursuance of previous orders of this Court should have to
serve under pressure of the unreasonable conditions mentioned in
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the impugned order. The conditional and temporary approval is
unlawful and unsustainable. The Petitioners cannot be deprived of
the right of the regular employment particularly when their entry
can neither be termed as illegal nor back door.
13. In view of the above, the 2nd Respondent is directed to grant
approval to the Petitioners No. 2 and 3 sans conditions No. 9 and 10
of the impugned order. The conditions No. 9 and 10 of the
impugned order are quashed and set aside. The approval has already
been granted in respect of the 1st Petitioner as stated by the 2nd
Respondent on affidavit. At this stage, Mr Bandiwadekar brings to
our attention that the Petitioners No. 2 and 3 have completed the
probation period on 19th June 2021 and are entitled to a regular pay
scale. We further direct the 2nd Respondent to fix regular pay scale
in respect of the Petitioners No. 2 and 3.
14. Rule is thus made absolute in terms of prayer clause (b).
There will be no orders as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
27th April 2023
